LEGAL ETHICS OPINION 1789Client file – whether an
attorney can refuse to release information and medical reports to client at his
request

Your request presented a hypothetical situation involving a
lawyer representing a client before the Social Security Administration.The client is seeking disability benefits
under Title II of the Social Security Act.The client has disabling mental impairments affecting both personality
and judgment.In the course of this
representation, the attorney secured a copy of a report developed by the
client’s treating psychologist.The
psychologist had prepared the report specifically at the direction of the
client’s long-term disability insurance carrier to determine the client’s eligibility
for those benefits.The carrier paid for
the report.

The attorney’s standard practice is to have the client
secure the report directly from the evaluator so that the evaluator can discuss
with the patient the implications of any findings or opinions expressed in the
medical records. However, in the present
instance, the carrier directed the psychologist not to release a copy of the
report to the client.The psychologist
refuses to authorize release of the report to the client; the attorney cannot
ascertain whether this is for medical reasons or due to the carrier’s
instructions.The attorney is mindful of
the client’s right to obtain the record from his own Social Security file were
he to so request.

Under the facts you have presented, you have asked this Committee
to opine as to the following questions:

1.Is a medical record obtained in the course of
litigation and submitted to the tribunal in support of the client’s case part
of the “client’s file” requiring disclosure to the client pursuant to Rule
1.16(e)?

2.Can
the insurance carrier and/or the psychologist prohibit the lawyer from
providing this report to the client?

When a lawyer’s client requests the contents of the file,
the appropriate response for the lawyer hinges on whether the representation
has terminated.The ethical duty of
response to such a request varies depending on whether the requester is a
current or a former client.During the
course of the representation, an attorney’s duty to provide information to his
client is governed by Rule 1.4(a), regarding communication.However, upon termination of the
representation, the lawyer must follow the directives of Rule 1.16(e) regarding
the disposition of the client’s file.

Throughout representation of a client, Rule 1.4 requires the
attorney to ensure proper attorney/client communication, outlined as follows:

(a) A lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable
requests for information.

(b) A lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make informed decisions
regarding the representation.

(c) A lawyer shall inform the client of facts
pertinent to the matter and of communications from another party that may
significantly affect settlement or resolution of the matter.

Generally, the rule does not direct the means by which an
attorney may “keep a client reasonably informed.”Depending on the circumstances, information
may reasonably be provided, for example, at a meeting, in a telephone call, in
a letter or other document, or via e-mail correspondence.Nevertheless, the rule requires more than
just this general duty to keep the client reasonably informed; the lawyer is
also required to “promptly comply with reasonable requests for information.”A client’s request for a copy of a particular
document or documents in the file must be considered in light of that
duty.While a lawyer may not be required
to provide all file contents whenever requested, the lawyer must be sure to
comply with 1.4(b) in responding to any reasonable client request for documents
during the course of the representation.Additionally, the Committee notes that the attorney also has a duty to
the client under Rule 1.15(c) to return client property received by the
attorney to the client upon request.

The lawyer’s obligations regarding file contents change upon
termination of the representation.Rule
1.16 governs the termination of an attorney/client relationship.Paragraph (e) of that rule specifically
addresses a lawyer’s obligations regarding provision of file contents to a
client upon request at the end of the representation.That paragraph states as follows:

(e)All original, client-furnished documents and
any originals of legal instruments or official documents which are in the
lawyer's possession (wills, corporate minutes, etc.) are the property of the
client and, therefore, upon termination of the representation, those items
shall be returned within a reasonable time to the client or the client’s new
counsel upon request, whether or not the client has paid the fees and costs
owed the lawyer.If the lawyer wants to
keep a copy of such original documents, the lawyer must incur the cost of
duplication.Also upon termination, the
client, upon request, must also be provided within a reasonable time copies of
the following documents from the lawyer's file, whether or not the client has
paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party
communications; the lawyer's copies of client-furnished documents (unless the
originals have been returned to the client pursuant to this paragraph);
transcripts, pleadings and discovery responses; working and final drafts of
legal instruments, official documents, investigative reports, legal memoranda,
and other attorney work product documents prepared or collected for the client
in the course of the representation; research materials; and bills previously
submitted to the client.Although the
lawyer may bill and seek to collect from the client the costs associated with
making a copy of these materials, the lawyer may not use the client's refusal
to pay for such materials as a basis to refuse the client's request.The lawyer, however, is not required under this
Rule to provide the client copies of billing records and documents intended
only for internal use, such as memoranda prepared by the lawyer discussing
conflicts of interest, staffing considerations, or difficulties arising from
the lawyer-client relationship. The lawyer has met his or her obligation under
this paragraph by furnishing these items one time at client request upon
termination; provision of multiple copies is not required. The lawyer has not
met his or her obligation under this paragraph by the mere provision of copies
of documents on an item-by-item basis during the course of the representation.

The thrust of this rule is to require an attorney to provide
the file at the termination of the representation, upon request of the client,
one time.Paragraph (e) specifically
addresses how to handle the client’s file, with language breaking file contents
into three categories.

The first is “all original, client-furnished documents and
any originals of legal instruments or official documents.”Those documents are deemed to be the client’s
property; the attorney must unconditionally return them to the client upon
request.While the attorney may make a
copy of such documents for his own use, he may not charge that copying expense
to the client.

The second category includes lawyer/client and
lawyer/third-party communications, copies of client-furnished documents (unless
the original has already been returned), working and final drafts of legal
instruments, official documents, investigative reports, legal memoranda, and
other attorney work product documents prepared or collected for the client,
research materials, and copies of prior bills.For this second category, a lawyer may charge the client for the expense
of the lawyer’s making a copy of the items for his own retention.However, the attorney may not condition the
release of the documents upon the client’s prepayment of copying expenses.

A third category presented in Rule 1.16(e) includes copies
of billing records and documents intended only for internal use, such as
memoranda prepared by the lawyer discussing conflicts of interest, staffing
considerations, or difficulties arising with the attorney/client
relationship.A lawyer is not required
to provide those items to the client.

In applying paragraph (e)’s categories to the medical report
at issue, the key category is the second one.That category in paragraph (e) includes “documents prepared by or
collected for the client in the course of the representation.”That language clarifies that the directive of
the provision applies not only to material developed by the attorney himself
but also to those documents obtained from others for the representation.A medical report from the client’s treating psychologist
is just such a document.Thus, the Committee
opines that this medical report is part of the client file for purposes of Rule
1.16(e).

This request questions further whether either the carrier or
the doctor can prohibit the attorney from providing the client with a copy of
this report.In considering that
question, this Committee references its previous opinion regarding carrier
directives to insureds’ attorneys.See,
LEO 1723.In that opinion, which dealt
with a carrier’s directives to an insured’s attorney to work with certain
limitations on the scope of representation, the Committee noted that the
attorney must remain mindful that he represents the insured, not the
carrier.Accordingly, in rejecting the
attorney’s acceptance of the restrictions, the Committee noted:

[I]t is ethically impermissible for an attorney to agree
to an insurance carrier’s restrictions on the right of the insured absent full
disclosure and consent of the client at the outset of the representation and
absent a determination that the client’s rights will not be materially impaired
by the restrictions.

Similarly, the present attorney must be mindful of the fact
that he represents the patient, and not the carrier or the psychologist.This attorney should not follow the
instruction of these nonclients to breach the attorney’s ethical duties owed to
his client, such as provision of file contents pursuant to Rule 1.16(e).

The Committee notes that while question two does not make
express mention of mental health concerns as the reason for the psychologist’s
directive in this matter, the facts in the hypothetical do raise that
possibility.Were the attorney to
determine that the psychologist wants to preclude client access to the report
out of concern for the effect on the client of such disclosure, the attorney
may wish to consider whether Rule 1.14 is implicated in his situation.

Rule 1.14 provides guidance to an attorney with a client
with impairment.In particular, the rule
allows an attorney to take protective action with regard to his client under certain
circumstances when the client cannot act in his own interest.The limited facts presented do not allow for
analysis of whether Rule 1.14 is triggered in this particular situation.However, the Committee does note that while
an attorney may never withhold a medical report from a client merely at the
request of some other party, in rare instances, an attorney may appropriately
consider whether the client is able to act in his own interest with respect to
requesting the information.

The Committee further notes that the conclusions drawn in
this opinion are only those within the purview of this Committee to interpret
the Rules of Professional Conduct. Comment 11 to Rule 1.16 states that “the
requirements of paragraph (e) should not be interpreted to require disclosure
of materials where the disclosure is prohibited by law.”Interpretations of authority other than the
Rules of Professional conduct would be beyond this Committee’s purview.Accordingly, this opinion does not address
legal questions of permissibility of disclosure of medical records under legal
authority such as Virginia Code §§8.01-413 and 32.1-127.1:3 or the Health
Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 42
U.S.C. 1301 et. seq.

This
opinion is advisory only, based only on the facts you presented and not binding
on any court or tribunal.